Interim Separation from Parents in Residential Assessments: C (A Child) [2025] EWCA Civ 1618 and the Duty to Undertake a Full Welfare Balancing Exercise

Interim Separation from Parents in Residential Assessments: C (A Child) [2025] EWCA Civ 1618 and the Duty to Undertake a Full Welfare Balancing Exercise

1. Introduction

The decision in C (A Child) (Interim Separation: Residential Care) [2025] EWCA Civ 1618 concerns one of the most difficult issues faced by the family courts: whether to authorise the interim removal of a very young child from parental care during ongoing care proceedings, particularly where the child is placed with the parents in a residential assessment unit.

C is a baby girl, eight months old at the time of the appeal, living with both parents in a 24/7 supervised residential setting, Oak Lodge. The local authority, already holding interim parental responsibility under an interim care order, sought the court's authorisation to separate C from her parents following a negative parenting assessment by Oak Lodge. The Family Court refused the application; the Court of Appeal has now allowed the appeal and remitted the matter for re‑hearing before a different judge.

This judgment does not create an entirely new test, but it performs an important clarificatory and corrective function in the law on interim separation:

  • It confirms that the five propositions in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 (“Re C 2019”) are not a self‑contained substitute for the welfare analysis required by s.1 Children Act 1989.
  • It insists that even at an interim stage, and even in short hearings, judges must engage in a coherent, explicit welfare balancing exercise, including proper attention to emotional and psychological harm.
  • It addresses, albeit tentatively, the position where a residential assessment ordered under s.38(6) Children Act 1989 has concluded, but the parents and child remain in the unit.

For practitioners, the case is a reminder that interim removal decisions concerning babies in residential placements demand “anxious consideration” of all the evidence, not a narrow focus on physical safety or a mechanistic recitation of the Re C 2019 propositions.

2. Factual and Procedural Background

2.1 The family and prior history

  • Both parents are 30 and have significant learning difficulties. The mother’s IQ was assessed at 72 (2021); the father’s at 55–57 (April 2025).
  • Both suffer from mental ill‑health: the mother from depression and anxiety; the father from anxiety, depression and paranoia, alongside long‑standing neurodevelopmental conditions (autism and ADHD).
  • The father has a history of:
    • Substance misuse (alcohol and cannabis),
    • Sexually inappropriate behaviour,
    • Domestic abuse, and
    • A 2021 conviction for hitting one of his older children.
  • The parents have had nine children removed from their care with findings of neglect, emotional harm and physical abuse; two of C’s older siblings were made subject to care and placement orders in March 2023.
  • There is no meaningful family support network.

This chronic history of neglectful and harmful parenting is explicitly recognised by the Court of Appeal as the “unhappy backdrop” (§9) and, crucially, as part of the “background” factor in the s.1(3)(d) welfare checklist which should have been engaged by the judge.

2.2 Care proceedings and the residential assessment

  • The local authority issued care proceedings the day after C’s birth in April 2025.
  • An interim care order was made when C was six days old (s.38 CA 1989).
  • The initial local authority plan was foster care; the parents opposed this.
  • On 8 April 2025, HHJ Scarratt directed a residential assessment of the parents and C under s.38(6) CA 1989, with the child to be placed with her parents in a residential unit (later Oak Lodge). The Children’s Guardian supported this.
  • On 22 April 2025, DJ Whitfield made final directions for the placement under s.38(6), and the family moved into Oak Lodge on 23 April 2025.

Oak Lodge provided intensive supervision: CCTV monitoring around the clock and significant one‑to‑one supervision. This is central to the later argument about whether C was “safe” if she remained in that structured environment.

2.3 Events at Oak Lodge and the negative final assessment

The parents’ performance at Oak Lodge was mixed:

  • There were positive observations – e.g. emotional warmth, hygiene, some household competence, absence of current substance misuse.
  • However, in June 2025, after supervision on feeding was reduced, C was twice admitted to hospital with weight‑loss (§12), indicating serious concerns about the parents’ ability to manage basic health and feeding tasks even in a supervised setting.

Oak Lodge produced:

  • An interim report in mid‑June 2025, cautiously supporting continuation of the placement (§13), and
  • A final parenting capacity assessment on 12 August 2025, using the ParentAssess Framework, which categorised parental functioning into Green, Amber and Red domains (§§14–16).

The final report:

  • Identified some Green areas (demonstrated skills and knowledge).
  • Noted Amber areas where improvement was possible with support (including the passage the judge later mis‑relied on at para 12 of the report).
  • Identified multiple Red areas showing serious safeguarding concerns, especially regarding:
    • Meeting C’s health needs, particularly when parents were stressed or fatigued (§15; report paras 24–25);
    • Inability to adhere to a feeding/sleeping routine;
    • Emotional dysregulation, especially mother’s difficulty handling C when unsettled or unwell;
    • Reliance on staff prompts for basic parenting and lack of insight into C’s developmental and emotional needs (§16; report paras 113–114).

The assessor’s professional conclusion was that the parents could not safely care for C in the long term and that “ongoing staff supervision within a structured and protective environment remains necessary” (§16).

2.4 The interim separation application

On 14 August 2025, in light of the negative assessment, the local authority applied for authorisation to separate C from her parents and effectively terminate the Oak Lodge placement (§17). The supporting social work statement asserted that:

While there are moments of warmth and engagement… the overall pattern of care is inconsistent, reactive, and reliant on staff intervention. [C]’s safety, emotional wellbeing, and developmental needs are not being met reliably. (§17)

By the hearing on 16 September 2025 before HHJ Thomas:

  • The local authority sought removal.
  • The Children’s Guardian supported the application.
  • The mother opposed removal and indicated she was unhappy at Oak Lodge and wished to leave.
  • The father, represented by the Official Solicitor as litigation friend, adopted a neutral stance recorded on the face of the order.

Importantly, all advocates initially assumed that the Oak Lodge placement (and therefore the assessment under s.38(6)) would imminently end in any event. During the hearing they learned that Oak Lodge was content for the family to stay on. Despite the label “final report”, the family remained placed at Oak Lodge and further weekly logs were completed (§19).

2.5 The Family Court hearing and decision

The hearing was listed for one hour but took significantly less time (§26). The judge:

  • Immediately pressed the local authority’s counsel to address the Re C 2019 five‑point test.
  • Indicated that, in his view, if the parents were staying at Oak Lodge the Re C 2019 test could not be met and the application must fail (§27).
  • Admitted that he had not read the application form and, crucially, did not refer to or analyse the social work statement (§28).
  • Gave a very short ex tempore judgment of only nine paragraphs over one and a half pages (§28).

In that judgment, the judge:

  • Accepted there were serious concerns (Red areas) in the Oak Lodge report, including health, routine, sleeping and feeding (§28, para 7).
  • Nonetheless focused on a single Amber statement that with support the parents were likely to continue to improve (§28, para 4), as if it reflected the overall tenor of the report.
  • Considered that the recommendation for “ongoing staff supervision within a structured and protective environment” undermined the local authority’s application since the parents were, for now, remaining in that environment (§28, para 7).
  • Held that interim removal required evidence that C’s physical safety, or psychological or emotional welfare “demands” separation and concluded:
    I have seen no evidence from [Oak Lodge] that the child is not safe in that environment, either physically, psychologically or emotionally, so I dismiss the application. (§28, para 9)

He did not identify or analyse the options before the court in any structured way and did not explicitly refer to the welfare checklist or the longer-term period until final hearing.

2.6 The appeal and fresh evidence

The local authority appealed on three grounds centred on:

  1. Failure to consider all the evidence, focusing narrowly on the Oak Lodge report.
  2. Failure to conduct a careful welfare analysis of the competing interim options, particularly given the long delay to final hearing.
  3. Over‑emphasis on physical safety and failure properly to consider emotional and psychological harm (§29).

On appeal:

  • The Official Solicitor (for the father) sought to adduce fresh evidence – weekly Oak Lodge logs created after the hearing, under CPR r.52.21(2)(b). No party opposed this (§5, §20).
  • The logs were descriptive, not analytical; they reflected intensive supervision and mixed parental performance but a generally happy baby (§20).
  • The Court of Appeal allowed the appeal but declined to substitute its own welfare decision, instead remitting the matter for re‑hearing before a different circuit judge (§6, §35, §43–44).

3. Summary of the Court of Appeal’s Judgment

The Court of Appeal (Lady Justice – unnamed in extract, with Zacaroli LJ and Arnold LJ agreeing) allowed the appeal and remitted the local authority’s application for re‑hearing before a different judge in Kent.

3.1 Core holdings

The Court of Appeal held that:
  • The first instance judge:
    • Failed to undertake the required welfare‑focused balancing exercise for an interim separation decision (§38–42);
    • Over‑relied on the five propositions in Re C 2019 as if they were a standalone test and treated their perceived non‑application as dispositive (§40–41);
    • Failed to engage with the full evidential picture, including the social work statement and key aspects of the Oak Lodge report’s Red‑flag concerns (§30, §38–39);
    • Mischaracterised the Oak Lodge report by elevating a single Amber observation suggesting potential improvement with support (§33, §38);
    • Focused almost exclusively on the absence of evidence that C was currently “unsafe” in the supervised placement and ignored the ongoing emotional and psychological harm and inadequate parenting over a prolonged period (§30–33, §38–40).
  • The judgment did not show the “anxious consideration” and coherent evaluation of evidence required by Re C 2020 at [13] (§38).
  • There was no meaningful reference to, or engagement with, the s.1(3) welfare checklist or with the paramountcy of C’s welfare (§38–39).
  • In these circumstances, the decision could not stand; the appeal had to be allowed and the application re‑heard.

3.2 Approach to disposal

Although fresh evidence (the weekly logs) had been admitted, the Court of Appeal:

  • Accepted that the logs were descriptive and incomplete as an analytical basis for a conclusive welfare determination (§20).
  • Noted that no party (save the mother) invited the court to substitute its own decision; even the mother’s counsel preferred substitution only if the appeal succeeded, while others pressed for remittal (§35).
  • Chose to remit the matter for an urgent re‑hearing in the week of 19 January 2026 with detailed case management directions (§6, §44).

The appellate court, therefore, remained within its proper role of reviewing legality and reasoning, not embarking on a fresh full welfare evaluation on an incomplete record.

4. Precedents Cited and Their Influence

4.1 Re DE and Re JW – the need for court authorisation for major care plan changes

The court first locates the case within the framework of local authorities making significant changes to a child’s arrangements under an interim care order.

  • Re DE (A Child) (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2015] 1 FLR 1001:
    • This case underscored that although a local authority with a care order holds parental responsibility, it must seek court authorisation (or be extremely careful) before taking steps that significantly interfere with family life, particularly where those steps might breach Article 8 ECHR.
  • Re JW (Child at Home under Care Order) [2023] EWCA Civ 944:
    • Reiterated and refined guidance on when local authorities must return to court for judicial scrutiny of major changes, such as removing a child who is at home under a care order.

Here, the local authority had “senior” parental responsibility under an interim care order but correctly sought court authorisation to separate C from her parents because of the fundamental shift this entailed from the interim care plan (§21). This reflects good practice as articulated in Re DE and Re JW.

4.2 The Re C line of authorities (2019 and 2020)

4.2.1 Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998

The family judge’s reasoning was heavily (and, the Court of Appeal found, over‑heavily) shaped by paragraph [2] of Re C 2019, where Peter Jackson LJ set out five propositions about interim care orders and interim removal (§23).

Those propositions emphasise, in summary:

  • The interim nature of such orders and the incomplete evidential picture;
  • The acute interference with Article 8 rights involved in interim removal, especially for a baby;
  • The requirement that separation be necessary and proportionate and only sanctioned where the child’s physical or psychological/emotional welfare demands it;
  • The need for the local authority to set out all available resources that might obviate separation.

This Court of Appeal decision endorses those propositions but clarifies their role:

  • They set the level of justification and proportionality “appropriately high” (§24).
  • They do not relieve the judge of the duty to undertake a welfare balancing exercise focused on the individual child’s welfare under s.1 Children Act 1989 (§24).

In short, the Re C 2019 propositions are guiding principles, not a self‑standing algorithm. The judge below erred by treating them as a threshold test which, once in his view unsatisfied (because Oak Lodge had not given notice to terminate), ended the analysis.

4.2.2 Re C [2020] EWCA Civ 257

In Re C 2020, Peter Jackson LJ returned to interim removal decisions and stressed at [12]–[13]:

  • The need for an evaluation and balancing of factors relevant to the child’s welfare;
  • The particular gravity and often irreversible consequences of decisions to remove babies at an interim stage;
  • That even when decisions are urgent and hearings brief, judges must still assess evidence coherently and apply the law rationally.

The present Court of Appeal expressly relies on this in criticising the lack of “anxious consideration” and coherent assessment in the judge’s short ex tempore judgment (§38).

4.3 Re L and Re H – interim hearings and their limits

The judgment also places this case within the line of authority governing the scope of interim decision‑making.

  • Re L (Interim Care Order: Prison Mother and Baby Unit) [2013] EWCA Civ 489; [2014] 1 FLR 807:
    • Black LJ warned that although interim decisions can have long‑term consequences, the court must respect the “purpose and bounds of an interim hearing” and not usurp the final trial (relying on Re H (A Child) (Interim Care Order) [2002] EWCA Civ 1932).
    • She reaffirmed that the paramount consideration, even at interim stage, is the child’s welfare, assessed by reference to s.1(2), 1(3) and 1(5) CA 1989 (§25).

The Court of Appeal in C (A Child) draws on this to stress that:

  • Interim removal decisions must focus on immediate and medium‑term welfare, not on final outcomes.
  • Nonetheless, the welfare checklist and the paramountcy principle still apply; the judge below failed to give these visible effect.

4.4 Re G (Minor) (Interim Care Order: Residential Assessment) [2006] 1 AC 576

A further, more technical, precedent is Baroness Hale’s speech in Re G. The local authority raised on appeal the argument (new at this stage) that once the Oak Lodge assessment formally ended on 12 August 2025:

  • The s.38(6) “assessment” was complete; and
  • Their statutory duty to fund the residential unit for assessment purposes therefore ended (§31–32).

Baroness Hale had emphasised that:

  • s.38(6) empowers the court to order “examination or assessment” of the child; it does not empower the court to order the local authority to provide general services or long‑term placements for family support (§31 quoting [65]).
  • Assessments under s.38(6) were intended to be relatively short, typically a matter of months, not an open‑ended placement ([68]).

The Court of Appeal did not determine this point but acknowledged it has “some force” and may arise again on re‑hearing (§32). This flags an important structural issue: when a residential assessment ends in a negative assessment, on what legal and funding basis does the child remain in that placement with the parents?

5. The Court’s Legal Reasoning

5.1 The applicable legal framework

The decision rests on three main pillars:

  1. Section 38 Children Act 1989: the interim care order and interim threshold.
  2. Section 1 Children Act 1989: the welfare principle and welfare checklist.
  3. Article 8 ECHR: proportionality and necessity of interference with family life.

5.1.1 Section 38 – interim care orders and threshold

C was subject to an interim care order made in April 2025. The interim threshold – “reasonable grounds to believe” that the s.31(2) threshold is met – had already been satisfied. The Court of Appeal notes that the interim threshold was not in issue at the September 2025 hearing (§23).

The local authority already held parental responsibility, but, following Re DE and Re JW, sought court authorisation to make a significant change to C’s living arrangements. This engagement of judicial scrutiny is rooted in both domestic statute and Article 8.

5.1.2 Section 1 – paramountcy and the welfare checklist

Because the application concerned C’s “upbringing”, the judge was required to:

  • Treat C’s welfare as the court’s paramount consideration (s.1(1) CA 1989); and
  • Have regard in particular to the welfare checklist in s.1(3) (§22).

The Court of Appeal is critical that the judge’s judgment:

  • Did not explicitly refer to the welfare checklist or show by its content that those factors had been considered (§38).
  • Gave no clear indication that the child’s emotional needs (s.1(3)(b)) or the background factors (s.1(3)(d)) were properly weighed (§38–39).
  • Included only a cursory reference to the “balance of harm” without identifying what factors were weighed (§38).

The appellate court does not insist on a rigid checklist recital in every short interim judgment, but it does insist that the reasoning must demonstrate that the judge has grappled with the relevant welfare factors, especially where the decision is as grave as the interim removal (or non‑removal) of a baby.

5.1.3 Article 8 – necessity and proportionality

The judge below correctly identified that:

  • Interim separation is a significant interference with the parents’ and child’s Article 8 rights.
  • Separation can only be justified if it is necessary and proportionate (§28, para 8).

However, the Court of Appeal found that the judge:

  • Did not carry out a structured proportionality assessment – i.e. did not systematically compare the interference involved in separation with the harm of non‑separation over the relevant time period.
  • Failed to consider the impact of continued exposure to inadequate parenting, emotional dysregulation and inconsistent care over several more months before final hearing (§30–33, §38–42).
  • Equated the absence of immediate catastrophic harm in the supervised setting with the absence of a necessity for separation, which is an unduly narrow view of Article 8 necessity in the child protection context.

5.2 Errors in the first instance reasoning

5.2.1 Over‑reliance on Re C 2019 and failure to balance welfare factors

The appellate court’s primary criticism is that the judge treated Re C 2019 as if it laid down an exclusive, quasi‑statutory “test”. From early in the hearing he framed the matter as whether the facts could be “brought within Re C” (§40), and concluded they could not because:

  • Oak Lodge had not demanded the parents leave; and
  • He considered there was no evidence that C was unsafe within Oak Lodge’s structured environment.

This had several consequences:

  • He regarded the local authority’s application as “flawed” largely because of Oak Lodge’s continuing willingness to accommodate the family (§40).
  • He did not proceed to undertake the required welfare balancing between:
    • Continuing the status quo (baby with parents in Oak Lodge) versus
    • Removing C to alternative care (e.g. foster care) pending final hearing;
  • He did not adequately consider the time frame – a further seven months until the listed final hearing (§30).

The Court of Appeal emphasises that whilst Re C 2019 sets appropriate standards of justification, it does not displace the central task: a child‑specific welfare evaluation (§24, §38–42).

5.2.2 Incomplete engagement with the evidence

The Court of Appeal highlights several evidential failings:
  • The judge acknowledged that he had not read the local authority’s application form and did not refer at all to the social worker’s statement (§28, §30).
  • Although he mentioned the Oak Lodge report, he:
    • Failed to engage with the detail of the Red areas; and
    • Seized on a single Amber statement (suggesting likely improvement “with support”) as though it captured the report’s overall assessment (§33, §38).
  • He did not address the Guardian’s reasoning that C was already suffering, and would continue to suffer, psychological and emotional harm, and was at risk of further physical harm (including the earlier hospital admissions for weight loss) (§33).

The appellate court regards this as incompatible with the “coherent assessment of the evidence” demanded by Re C 2020 at [13].

5.2.3 Narrow conception of “safety” and neglect of emotional/psychological harm

Perhaps the most striking criticism is that the judge appeared to focus on:

  • Whether C was safe in the immediate sense whilst located in Oak Lodge with intensive supervision, and
  • Primarily on physical safety (§29(iii), §31, §33, §38–40).

He concluded at para 9 of his judgment that he had seen no evidence that C was physically, psychologically or emotionally unsafe in that environment. The Court of Appeal:

  • Accepts that there may have been no evidence of acute immediate danger (e.g. risk of immediate injury or death) within the unit.
  • But stresses that the court had substantial evidence of:
    • Inconsistent care and feeding leading to hospital admissions;
    • Emotional dysregulation by the parents;
    • Inability to meet C’s health, emotional and developmental needs without high‑level prompting;
    • A professional conclusion that this pattern constituted a continuing safeguarding risk (§15–16, §33, §36).
  • Considers that the judge failed to appreciate the potential for cumulative emotional and psychological harm from prolonged exposure to this sub‑standard parenting, even in a supervised unit (§30–33, §38–42).

The judgment thereby reinforces that emotional and psychological welfare must be given equal weight to physical safety when considering interim separation.

5.2.4 Failure to engage with context and background

The Court of Appeal also stresses the omission of contextual factors:

  • The parents’ extensive history of having nine children removed for neglect, emotional harm and physical abuse (§9).
  • The father’s neurodevelopmental difficulties and associated risks (§8).
  • The limited or non‑existent family support available (§9).

These are classic s.1(3)(d) “background” considerations which frame risk and capacity. The judgment observed that the first instance judge did not reference this context at all (§39). This undermined the depth of the risk appraisal.

5.3 Why the appeal was allowed

The Court of Appeal finds that the three grounds of appeal “interweave” but that the most compelling is Ground 2: failure to undertake a careful welfare analysis of interim options (§42).

In summary, the appeal was allowed because:

  • The judge’s approach was:
    • “Too quick and cursory”,
    • Overly simplified to whether Re C 2019 could be satisfied, and
    • Insufficiently attentive to the broader welfare context and the evidence (§41–42).
  • The judgment lacked:
    • “Anxious consideration” of the serious issues raised (§38),
    • A coherent welfare balancing exercise, and
    • Proper engagement with the s.1(3) checklist, especially emotional needs and background.

The appellate court does not dictate the outcome of the interim separation application; it merely insists on lawful and properly reasoned decision‑making at the re‑hearing.

6. Complex Concepts Simplified

6.1 Interim care orders (s.38 CA 1989)

An interim care order is a temporary order made while care proceedings are ongoing. The court must have “reasonable grounds to believe” that the child is suffering or likely to suffer significant harm attributable to parental care (or lack of it).

Key points:

  • It gives the local authority parental responsibility, often alongside the parents.
  • It allows the authority to make arrangements for the child’s care, subject to court oversight.
  • It is based on incomplete evidence and should not pre‑determine the final outcome.

6.2 Section 38(6) residential assessments

Section 38(6) CA 1989 allows the court, when making an interim care order, to give directions for:

“…examination or assessment of the child.”

This has been interpreted to include joint residential assessments where a child is placed with parents in a specialist unit (like Oak Lodge) to assess parenting capacity.

Key points from Re G and this case:

  • The purpose is assessment, not permanent provision of support services.
  • The assessment is usually time‑limited (a few months).
  • Once assessment is complete, the legal and funding basis for continued placement becomes more complex – and may require fresh court consideration (a live issue signposted in this case).

6.3 The welfare principle and welfare checklist (s.1 CA 1989)

Section 1(1) Children Act 1989 provides that the child’s welfare is the court’s paramount consideration in decisions about upbringing. The welfare checklist in s.1(3) sets out matters the court must consider, including:

  • The child’s wishes and feelings (where relevant due to age);
  • Physical, emotional and educational needs;
  • The likely effect of any change in circumstances;
  • The child’s age, sex, background and characteristics;
  • Any harm suffered or at risk of being suffered;
  • How capable each parent is of meeting the child’s needs;
  • The range of powers available to the court.

Even at interim hearings, the court should keep these factors in mind, though the analysis may be shorter and more focused. In this appeal, the absence of explicit or implied engagement with these factors was a major criticism.

6.4 Article 8 ECHR: necessity and proportionality

Article 8 protects the right to respect for private and family life. Removing a child from parents interferes with this right. Such interference is lawful only if:

  • It is in accordance with law;
  • It pursues a legitimate aim (e.g. protection of the rights and freedoms of the child); and
  • It is necessary in a democratic society – meaning:
    • There is a pressing social need; and
    • The measure is proportionate to the legitimate aim pursued.

In child protection, this requires a comparison of the harm of removal with the harm of remaining, taking into account the range of less‑intrusive alternatives. An adequately reasoned judgment should show that this proportionality exercise has been carried out.

6.5 The ParentAssess framework and “traffic light” reports

ParentAssess is a specialist assessment tool for parents with learning disabilities, using:

  • Green – strengths;
  • Amber – areas of concern where improvement is likely with support;
  • Red – serious concerns and limited capacity or insight.

The Court of Appeal’s treatment of the Oak Lodge report underlines an important point:

  • Judges must not cherry‑pick a single Amber or Green comment to neutralise extensive Red concerns.
  • Traffic‑light frameworks are tools, not conclusions; the overall professional judgment (including narrative analysis) must be weighed in the welfare decision.

6.6 Official Solicitor and litigation friend

The father, given his cognitive limitations, lacked capacity to conduct litigation. The Official Solicitor acted as his litigation friend:

  • A person (or office) appointed to make decisions and give instructions in the party’s best interests where the party lacks capacity.
  • This ensures fair participation in the proceedings, consistent with Article 6 ECHR (right to a fair trial).

7. Impact and Practical Significance

7.1 Re‑centering the welfare balancing exercise in interim separation

The most important doctrinal effect of this decision is to re‑state firmly that interim separation applications:

  • Are not governed by a rigid “Re C 2019 test”;
  • Require an individualised welfare balancing exercise under s.1 CA 1989, even if the judgment is short;
  • Demand explicit or clearly implied consideration of:
    • The range of interim options (including continuing current arrangements, enhancing support, or removal);
    • The time period before final hearing; and
    • All forms of harm – physical, emotional, psychological and developmental.

For judges, the message is that brevity in ex tempore judgments is acceptable, but not at the expense of visible reasoning in cases where the consequences may be permanent and life‑shaping.

7.2 Clarifying the role of residential assessment units

This case is particularly significant in the context of residential assessments under s.38(6):

  • A negative final assessment does not automatically trigger removal; the court must still weigh welfare, proportionality and alternatives.
  • Conversely, the fact that the unit is prepared to continue housing the family does not immunise the case against interim separation. The court must ask:
    • Is the child’s ongoing exposure to inadequate parenting, even under supervision, in her best interests for the months ahead?
    • Is the child effectively being parented by staff rather than parents – and what are the emotional implications of that dynamic?
  • The tentative discussion of Re G signals that where the formal assessment has ended, the continued placement may require:
    • A fresh legal and funding basis; and
    • Explicit judicial consideration of whether the arrangement remains appropriate.

7.3 Emotional and psychological harm at the forefront

The judgment reinforces that:

  • It is a serious error to confine “safety” to physical harm in the short term.
  • Exposure to chronically inconsistent, emotionally dysregulated and developmentally insensitive care can cause significant emotional and psychological harm, especially in infants in crucial bonding and attachment phases.
  • Such harm must be explicitly evaluated in interim decisions, not postponed to the final hearing.

Practitioners should be ready to provide clear evidence and submissions on:

  • The quality of day‑to‑day care (not just crisis events);
  • The impact of that care on the child’s attachment, emotional regulation, and development; and
  • The trajectory of that impact over the months before final hearing.

7.4 Evidential practice: holistic use of reports and statements

From a practice perspective, this decision warns against:

  • Selective reading of multi‑part assessments;
  • Ignoring social work statements and Guardian analyses in favour of a single report; or
  • Failing to ensure that critical documents are read and digested before decision‑making.

For advocates:

  • Submissions should be clearly structured around:
    • The welfare checklist;
    • Proportionality and Article 8;
    • The Re C 2019 propositions – but only as part of, not a substitute for, welfare analysis.
  • Key evidential passages (especially in Red sections of assessments) should be highlighted and summarised succinctly to assist judges under time pressure.

7.5 Appellate oversight and short judgments

Finally, the case underscores the willingness of the Court of Appeal to intervene where:

  • The reasoning is too skeletal to reveal a lawful approach;
  • Key statutory principles (welfare, checklist, proportionality) are not visibly engaged; and
  • The case concerns “most anxious” decisions such as interim removal or non‑removal of a baby.

At the same time, by remitting rather than substituting, the court respects the primary fact‑finding and evaluative role of the Family Court, particularly in rapidly evolving factual situations.

8. Conclusion: Key Takeaways

The decision in C (A Child) (Interim Separation: Residential Care) [2025] EWCA Civ 1618 does not rewrite the law on interim care orders, but it delivers an important and timely message about how that law must be applied, especially in the complex context of residential assessments.

In essence, the Court of Appeal:

  • Reaffirms that Re C 2019 sets out valuable guidance on necessity and proportionality but cannot displace the statutory requirement for a child‑focused welfare balancing exercise under s.1 CA 1989.
  • Insists that judges must:
    • Engage with the full evidential picture;
    • Consider emotional and psychological harm as well as physical safety;
    • Factor in the time frame to final hearing; and
    • Explain, even briefly, how these considerations lead to their conclusion.
  • Signals that continued residence in a s.38(6) assessment unit after a final negative assessment raises issues both of welfare and of legal/funding basis which the Family Court must squarely address.

For practitioners and judges, the case is a powerful reminder that interim decisions about separating a baby from their parents – or declining to do so – require:

  • Anxious, structured reasoning rather than formulaic recourse to case‑law mantras; and
  • A clear demonstration that the child’s welfare and rights – not the convenience of existing arrangements – are at the heart of the court’s decision.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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